Venticinque v. Lair: Clarifying the Burden of Proving Harm and the Limits of Equitable Caregiver Status under OCGA § 19‑7‑3.1

I. Introduction

In Venticinque v. Lair, the Supreme Court of Georgia revisits the State’s “Equitable Caregiver Statute,” OCGA § 19‑7‑3.1, in a dispute between a biological mother and her former same-sex partner over a young child conceived via sperm donation. The decision is important for two main reasons:

• It clarifies, with some force, who bears the burden of proving “harm” in equitable caregiver proceedings; and
• Through a detailed concurrence, it signals constitutional limits on how far courts may go in elevating non‑parents to near‑parental status and in reallocating custody away from fit parents.

The majority opinion, authored by Justice Land, is narrow: it holds that the trial court misapplied OCGA § 19‑7‑3.1 by placing the burden of proving harm on the biological parent, Krystle Venticinque, instead of on the putative equitable caregiver, her former partner, Amber Lair. On that basis, the Court vacates both the equitable caregiver adjudication and the custody/visitation orders, and remands for application of the correct standard. In doing so, the Court again avoids ruling on the constitutionality of the statute.

Chief Justice Peterson, joined by Justice Bethel, files a substantial concurrence. While agreeing with the statutory holding, he offers extensive guidance on three constitutional themes:

1. Any remedy under the Equitable Caregiver Statute must be narrowly tailored to remedy the harm to the child caused by the parent’s particular decision about contact with the non‑parent.
2. Adjudicating a person as an equitable caregiver does not and cannot make that person a “constitutional parent” with parity of rights against the legal parent.
3. A parent’s fundamental constitutional rights cannot be deemed waived simply because the Equitable Caregiver Statute existed when the parent fostered a parent‑like relationship between the child and a third party; waiver of constitutional rights must be knowing, voluntary, and intelligent.

Together, the majority and concurring opinions significantly shape how Georgia courts must handle future equitable caregiver petitions, especially in cases where a non‑biological but deeply involved adult seeks custody or visitation over a fit parent’s objection.

II. Summary of the Opinion

A. Facts and Parties

Krystle Venticinque and Amber Lair were long‑term romantic partners living in Savannah. In 2018 they decided to have a child together. They chose a sperm donor who resembled Lair, and agreed that Venticinque would carry the pregnancy. Lair paid some fertility-related fees, took time off work after birth, helped care for the child (L.V.), participated in the baby shower and gender reveal, and was publicly presented by Venticinque (at least in cards and social media) as “Mommy” or “Mama” and a co‑parent. The couple intended marriage, a second‑parent adoption for Lair, and for the child to have Lair’s last name, but those steps were never completed.

After the child’s birth in July 2021, Lair and Venticinque lived together with L.V. in Savannah. In late 2022, when L.V. was about 16 months old, Venticinque left Georgia with the child to visit family in Pennsylvania and did not return, cutting off all contact between Lair and L.V. Venticinque later testified that she left due to alleged abuse and that Lair’s actual caregiving was limited.

In December 2022, Lair petitioned under OCGA § 19‑7‑3.1 to be adjudicated an “equitable caregiver,” seeking custody/visitation rights. Venticinque challenged the petition and attacked the constitutionality of the Equitable Caregiver Statute.

B. Trial Court Proceedings

In a June 12, 2023 order, the trial court:

• Upheld the constitutionality of OCGA § 19‑7‑3.1, reasoning that the statute is narrowly tailored and incorporates the “harm” standard set in Clark v. Wade (2001);
• Found that Lair met most of the statutory criteria for equitable caregiver status (committed parental role, bonding, assumption of parental responsibilities without compensation); but
• Misallocated the burden of proof on the crucial “harm” requirement under OCGA § 19‑7‑3.1(d)(5), explicitly stating it would consider whether Venticinque had demonstrated that the child would suffer physical or long-term emotional harm if Lair’s petition were granted.

The court granted Lair equitable caregiver status and temporary joint legal custody and visitation.

In August 2024, the court held a final bench trial on custody, visitation, and support. In a November 1, 2024 “Amended Final Order,” applying OCGA § 19‑9‑3 (the general “best interests of the child” custody statute), it:

• Granted joint legal custody to Lair and Venticinque;
• Awarded primary physical custody to Lair;
• Granted visitation to Venticinque under a separate parenting plan.

The custody decision clearly treated the parties essentially as two competing “parents” under the usual divorce‑style best‑interest analysis.

On appeal, the case came to the Supreme Court of Georgia because it included constitutional challenges to OCGA § 19‑7‑3.1.

C. The Supreme Court’s Holding and Disposition

The Court holds that:

• The Equitable Caregiver Statute, OCGA § 19‑7‑3.1(d)(5), requires that the putative equitable caregiver (here, Lair) must demonstrate by clear and convincing evidence that the child will suffer physical harm or long-term emotional harm if the petition is not granted, and that continuing the relationship is in the child’s best interest.
• The statute does not place any burden on the legal parent (here, Venticinque) to prove harm.
• The trial court therefore applied the wrong legal standard when it required the mother to show that the child would be harmed if the petition were granted.

Consequences:

• The June 2023 order granting Lair equitable caregiver status is vacated.
• Because custody and visitation orders were predicated on that adjudication, the November 2024 Amended Final Order and Parenting Plan are also vacated.
• The case is remanded to the trial court with instructions to apply the correct statutory standard under OCGA § 19‑7‑3.1.
• The Court does not reach:
  • the facial constitutionality of the statute (counsel conceded there was no facial challenge),
  • the as‑applied constitutional challenge (because the statute has not yet been properly applied), or
  • other alleged errors.

This approach follows the Court’s practice of constitutional avoidance, as reaffirmed in State v. Randall (2024): avoid deciding “novel constitutional questions” where the case can be resolved on non‑constitutional grounds.

III. Detailed Analysis

A. Statutory and Doctrinal Context: Georgia’s Equitable Caregiver Statute

OCGA § 19‑7‑3.1 creates a mechanism by which a non‑parent—often a step‑parent, long‑term partner, or someone functioning as a de facto parent—may seek to be adjudicated an “equitable caregiver” with potential rights to custody or visitation.

Key structural features, as summarized in Dias v. Boone (2025) and cited here:

• The statute establishes both:
  • Procedural requirements (e.g., a petition, threshold showings of “standing”), and
  • Substantive requirements (e.g., proof of a parent‑like role, bonded relationship, and harm standard).
• The petitioner must establish a series of prerequisites by clear and convincing evidence, including:
  • Having fully undertaken a permanent and responsible parental role (OCGA § 19‑7‑3.1(d)(1));
  • Having engaged in caretaking, establishing a bonded and dependent relationship fostered or supported by a parent (OCGA § 19‑7‑3.1(d)(2)-(4)); and
  • Under § 19‑7‑3.1(d)(5), demonstrating that the child will suffer physical harm or long-term emotional harm and that continuing the relationship is in the child’s best interest.
• Once adjudicated, an equitable caregiver may be granted “parental rights and responsibilities … including, but not limited to, custody or visitation” (OCGA § 19‑7‑3.1(g)).

However, as Dias and this case underscore, the statute operates against a constitutional background: Georgia and federal law strongly protect the rights of fit legal parents to decide with whom their children will live and associate. Non‑parents do not start with equivalent constitutional stature.

B. The Trial Court’s Error: Misallocating the Burden of Proving “Harm”

The central statutory issue is the interpretation and application of OCGA § 19‑7‑3.1(d)(5). The Supreme Court quotes its own earlier interpretation from Dias v. Boone:

“The statute requires a putative equitable caregiver to show by clear and convincing evidence that the child will suffer physical harm or long-term emotional harm if the petition is not granted.”

Yet the trial court framed the inquiry in reverse. It stated it would:

“address[] whether defendant [Venticinque] has demonstrated that the child will suffer physical harm or long-term emotional harm if plaintiff’s [Lair’s] petition is granted.”

This is the opposite of what the statute and Dias require.

The Supreme Court emphasizes two points:

• The petitioner—“the individual seeking equitable caregiver status”—must establish each statutory prerequisite by clear and convincing evidence, including the harm requirement.
• The statute “places no burden on [the legal parent] to prove anything with respect to the issue of harm to the child.”

Because the trial court put the onus on the mother to prove that harm would result if the petition were granted, rather than requiring Lair to prove harm from denial of the petition, the equitable caregiver adjudication rests on a legally flawed foundation. The Court therefore vacates the equitable caregiver order and, as a consequence, vacates the custody and parenting plan orders that flow from it.

C. The Ripple Effect: Vacating Custody and Visitation Orders

Once the equitable caregiver adjudication falls, the custody structure built upon it cannot stand. The Court invokes the general rule articulated in Franklyn Gesner Fine Paintings, Inc. v. Ketcham (1989): when a judgment is reversed, the parties are returned to the position they occupied before it was entered.

Here, the trial court’s Amended Final Order and Parenting Plan rested on Lair’s status as an adjudicated equitable caregiver. Without that status, the legal framework for treating the dispute as a two‑parent custody contest under OCGA § 19‑9‑3 collapses. Thus, all post‑adjudication custody and visitation determinations must be reconsidered anew, if and only if Lair can first meet the properly applied standards of § 19‑7‑3.1.

D. Precedents Cited and Their Influence

1. Dias v. Boone (2025)

Dias is the keystone precedent for interpreting the Equitable Caregiver Statute. Although the full decision post‑dates the knowledge cutoff, the Ventincinque opinion quotes and applies it, so its key holdings for present purposes are clear:

• Dias interprets § 19‑7‑3.1(d) as requiring the putative equitable caregiver to establish all prerequisites, including harm, by clear and convincing evidence.
• It explicitly reads § 19‑7‑3.1(d)(5) to require a showing that the child will suffer physical harm or long‑term emotional harm if the petition is not granted.
• Dias also expresses “significant constitutional concerns” about the statute, particularly that it:
  • does not explicitly require deference to parental judgment,
  • contains no presumption favoring custody with the legal parent, and
  • does not expressly require that relief be narrowly tailored to avoid unconstitutional intrusion into parental rights.

Venticinque relies on Dias for both the allocation of the burden of proof and the interpretation of the harm requirement. The majority’s ruling is essentially an enforcement of Dias against a trial court that applied the statute in a parent‑burdened, rather than petitioner‑burdened, fashion.

2. Clark v. Wade (2001)

Clark (a plurality opinion) is central to Georgia’s constitutional doctrine on parental rights versus third‑party visitation or custody claims. It held that:

• Parents have a fundamental liberty interest in the care, custody, and management of their children.
• State interference with that right to award custody/visitation to non‑parents requires proof, by clear and convincing evidence, that the child will suffer harm from the parent’s decisions.

The trial court in Venticinque cited Clark to support its view that the Equitable Caregiver Statute is constitutional because it allegedly imports the Clark “harm” standard. The Supreme Court does not resolve that constitutional question, but it effectively says: even if the statute could be read consistently with Clark, the trial court still misapplied the statute by assigning the burden of proving harm to the wrong party.

3. Patten v. Ardis and Brooks v. Parkerson

In his concurrence, Chief Justice Peterson draws on two key Georgia decisions that struck down overly broad grandparent‑visitation statutes:

• Brooks v. Parkerson (1995) held that the State may interfere with parental rights only where a child’s “health or welfare” is threatened, i.e., where parental decisions would result in harm to the child. A mere “best interests” test is insufficient to override the choices of fit parents.
• Patten v. Ardis (2018) invalidated a grandparent‑visitation statute because it allowed courts to override parental decisions about visitation without a clear and convincing showing of actual or imminent harm to the child; parental choices cannot be displaced on a generalized best‑interests standard alone.

These precedents frame the baseline constitutional rule: Third‑party visitation or custody can be imposed over a fit parent’s objection only upon a clear and convincing showing of harm to the child from the parent’s particular decision, and any judicial remedy must be narrowly tailored to address that harm.

4. U.S. Supreme Court and Early Georgia Cases on Parental Rights

The concurrence also locates parental rights in a deeper constitutional and historical framework:

• Troxel v. Granville (U.S. 2000) – recognized, under the Fourteenth Amendment, a fundamental right of fit parents to make decisions concerning the care, custody, and control of their children.
• Santosky v. Kramer (U.S. 1982) – held that the fundamental liberty interest of natural parents in the care, custody, and management of their child does not “evaporate” even in the face of imperfect parenting or temporary loss of custody.
• Rives v. Sneed (Ga. 1858) – early Georgia recognition that parental rights predate and are protected by the Georgia Constitution as well.
• Ammons v. State (Ga. 2022) and McDonald v. City of Chicago (U.S. 2010) – cited to distinguish fundamental rights that predate government from rights created solely by statute.

These authorities underpin the concurrence’s skepticism that the General Assembly can, by ordinary statute, create a new class of persons who hold the same fundamental constitutional rights as parents.

5. State v. Randall (2024) and Constitutional Avoidance

Randall is invoked as a reminder that the Court generally avoids novel constitutional questions when cases can be resolved on statutory grounds. Here, because the trial court never properly applied the Equitable Caregiver Statute, any “as‑applied” constitutional challenge is premature. The majority therefore:

• Flags the constitutional issues (especially via the concurrence), but
• Declines to resolve them until a case presents a valid record of a correctly applied statute.

6. Waiver Cases: Brady v. United States, Johnson v. Zerbst, and Georgia Precedent

On the question whether parents can be deemed to have waived their constitutional rights by fostering a parent‑like bond between their child and a third party, the concurrence invokes waiver jurisprudence:

• Brady v. United States (U.S. 1970) and Johnson v. Zerbst (U.S. 1938) – waivers of fundamental constitutional rights must be knowing, voluntary, and intelligent, with sufficient awareness of relevant circumstances and likely consequences. Courts “indulge every reasonable presumption against waiver.”
• Miller v. Wallace (Ga. 1886) and OCGA § 19‑7‑1(b)(1) – Georgia has long allowed parents to contractually release parental rights, but only under terms that are clear, definite, and certain; this built‑in clarity requirement effectively ensures that such contracts cannot be entered into without actual knowledge.

These authorities support the concurrence’s conclusion that the mere existence of the Equitable Caregiver Statute cannot substitute for proof that the parent knowingly and intelligently relinquished or shared her constitutional rights.

E. Chief Justice Peterson’s Concurrence: Additional Guidance

1. Remedies Must Be Tailored to Harm from the Specific Parental Decision

Peterson underscores a core principle: interference with a fit parent’s decisions requires:

1. Clear and convincing evidence that the child will suffer harm from the parent’s specific decision regarding contact with a third party; and
2. A remedy that is narrowly tailored to mitigate that harm, not to pursue an open‑ended notion of “best interests.”

He notes:

• One can imagine a scenario in which denying all contact between a child and a long‑term de facto parent would cause serious emotional or mental harm to the child. In such a case, limited visitation ordered over a parent’s objection might be constitutionally permissible.
• However, it is “difficult to conceive” of a scenario in which a child will suffer the kind of harm that justifies State intervention if a fit parent refuses to share legal custody (as opposed to allowing some visitation). Decisions about education, health care, religion, and similar areas are traditionally within the parent’s protected domain.

This analysis sharply criticizes the trial court’s use of OCGA § 19‑9‑3’s divorce‑style custody factors (e.g., comparative home environments, educational plans, etc.) as if Lair and Venticinque were two constitutional equals. For constitutional purposes, they are not.

2. Equitable Caregiver ≠ Constitutional Parent

The concurrence rejects the argument that once someone is adjudicated an equitable caregiver, “the courts should no longer view the case through the prism of parent and non‑parent,” as though equitable caregivers “obtain parental status, no different than adoption.”

Peterson is openly skeptical that a statute can:

• Create a non‑biological, non‑adoptive person with the same fundamental constitutional rights as a parent; or
• Elevate a statutory status to a constitutional one without satisfying traditional mechanisms (e.g., adoption, or established doctrines of abandonment or voluntary contractual relinquishment under OCGA § 19‑7‑1(b)).

He further notes:

• Georgia’s Juvenile Code, not the Equitable Caregiver Statute, provides the exclusive framework for removals of children from unfit parents (including temporary removals), and that framework is detailed and procedurally robust (OCGA § 15‑11‑100 et seq.).
• The Equitable Caregiver statute itself states that adjudicating someone an equitable caregiver “does not disestablish the parentage of any other parent” (OCGA § 19‑7‑3.1(j)). That language is inconsistent with reading equitable caregiver status as fully equivalent to parenthood in constitutional terms.
• “Fictive kin” provisions in the Juvenile Code already allow for placement with certain non‑relatives (OCGA § 15‑11‑2(33); § 15‑11‑135(c)), further undercutting the idea that the Equitable Caregiver Statute was meant to function as a substitute removal or foster‑placement scheme.

In sum, while equitable caregivers may receive judicially ordered visitation or limited forms of custodial authority where constitutional standards are satisfied, they do not become equal sovereign decision‑makers with parents by virtue of OCGA § 19‑7‑3.1.

3. Waiver of Parental Rights Must Be Knowing, Not Imputed by Statute

Lair argued that because parents “are presumed to know the law,” and because the Equitable Caregiver Statute existed when Venticinque fostered Lair’s relationship with the child, Venticinque effectively “waived” her right to “exclusive parenthood.” The concurrence rejects this proposition.

Key points:

• The presumption that citizens know the law is a legal fiction used for other purposes (e.g., enforcing statutes, denying ignorance as a defense); it does not satisfy the constitutional requirement that waiver of fundamental rights be knowing and intelligent.
• Cases like Brady and Johnson v. Zerbst make clear that courts “indulge every reasonable presumption against waiver of fundamental rights” and do not presume acquiescence in such waiver.
• Georgia’s own jurisprudence on contractual relinquishment of parental rights (e.g., Miller v. Wallace) demands clarity and certainty—in effect, actual awareness of the consequences.

Thus, a parent’s decision to allow a third party to develop a close, even parental‑like relationship with the child—standing alone, and absent explicit, knowledgeable relinquishment—does not amount to a waiver of the parent’s constitutional primacy.

4. Enforcement of Visitation vs. Transfer of Custody

The concurrence also addresses an argument that primary custody could be shifted to an equitable caregiver as a way to enforce visitation orders where a parent is in contempt. Peterson points out that:

• Courts have potent tools—especially contempt sanctions, including fines and jail time (OCGA § 15‑6‑8(5))—to enforce visitation orders.
• Using a transfer of primary custody as an “enforcement tool” conflates punishment of contempt with reallocation of fundamental rights and is constitutionally suspect.

In the case at hand, the trial court had already imposed (and conditionally suspended) a 20‑day jail sentence for contempt. That sanction, not a custody transfer, is the appropriate lever to compel compliance with appropriately tailored visitation orders.

F. Constitutional Themes and the Role of OCGA § 19‑9‑3

The trial court used OCGA § 19‑9‑3—the standard “best interests” custody statute—to decide ultimate custody between Lair and Venticinque as if they were two parents. That statute:

• Assumes a contest between parents.
• Provides a non‑presumptive, multi‑factor test (home environment, past performance, willingness to foster relationship with the other parent, etc.).

The concurrence suggests that using § 19‑9‑3 as the primary framework for disputes between a parent and a third party (equitable caregiver) risks erasing the constitutional asymmetry between them. Even if the statute can be used as a secondary reference for determining specific relief once constitutional requirements (harm + tailoring) are met, it cannot serve as the sole standard or displace the heightened protections for parents.

This reinforces a broader theme: Georgia cannot constitutionally treat parent–equitable caregiver disputes as if they were ordinary divorce‑style, parent–parent custody cases. The parent’s fundamental rights do not evaporate simply because someone else has also acted as a functional parent.

G. Practical Implications and Likely Future Impact

1. For Trial Courts

On remand and in future cases, trial courts must:

• Recognize that the petitioner (putative equitable caregiver) bears the burden to prove, by clear and convincing evidence:
  • They have satisfied the statutory criteria in § 19‑7‑3.1(d)(1)-(4); and
  • Under § 19‑7‑3.1(d)(5), that:
    • the child will suffer physical harm or long‑term emotional harm if the petition is not granted, and
    • continuing the relationship is in the child’s best interest.
• Apply a harm‑plus‑tailoring framework rooted in Clark, Brooks, and Patten:
  • Identify the specific parental decision at issue (e.g., total cut‑off of contact) and the harm caused by that decision.
  • Fashion relief that goes no further than necessary to avert that harm (often visitation, not transfer of primary custody or joint legal custody).
• Use OCGA § 19‑9‑3, if at all, only in a way that respects parental primacy and does not treat parents and equitable caregivers as constitutional equals.
• Rely on contempt powers and similar enforcement tools, rather than large-scale custody transfers, to enforce lawful visitation orders.

2. For Putative Equitable Caregivers (Petitioners)

Petitioners seeking equitable caregiver status should expect:

• A high evidentiary bar: clear and convincing evidence is significantly more demanding than preponderance of the evidence.
• They must marshal evidence not only of:
  • deep and longstanding involvement in the child’s life, and
  • a bonded, dependent relationship fostered or supported by the parent;
  but also of:
  • serious physical harm or long‑term emotional harm to the child if contact is cut off or substantially reduced, and
  • why lesser interruptions (e.g., limited visitation) are inadequate.
• Even if adjudicated equitable caregivers, they should not assume they will be treated as equal “parents” for purposes of custody allocation; constitutional doctrine will generally favor preserving the fit parent’s ultimate decision‑making authority.

Practically, this decision nudges equitable caregiver relief toward:

• Carefully circumscribed visitation or parenting‑time arrangements, rather than
• Broad reallocations of legal or primary physical custody away from a fit parent.

3. For Parents Opposing Equitable Caregiver Petitions

Parents confronted with an equitable caregiver claim should note:

• They bear no burden to prove harm in order to resist the petition—statutorily or constitutionally. Their objections are presumed valid unless the petitioner overcomes this with clear and convincing evidence of harm to the child.
• They can rely upon:
  • The constitutional principle that fit parents’ decisions must be given special weight, and
  • The narrow tailoring requirement: courts may intervene only insofar as necessary to prevent serious harm to the child.
• They should be prepared, however, to respond to evidence that complete denial of contact might seriously damage the child; courts may respond with limited visitation orders even over parental objection if harm is adequately shown.

4. For LGBTQ+ and Other Non‑Traditional Families

Although the case arises from a same‑sex relationship and assisted reproduction, the Court’s reasoning is formally orientation‑neutral. Nonetheless, it has particular resonance for LGBTQ+ families and other non‑traditional arrangements where:

• One adult is the biological or legal parent, and
• The other acts as a de facto parent without securing adoption or other formal legal status.

This decision:

• Underscores the continued importance of formal adoption (e.g., second‑parent or step‑parent adoption) if a non‑biological partner wants parity of legal status with the biological parent.
• Signals that equitable caregiver status is a limited, harm‑based, third‑party mechanism, not a substitute for full parental rights.

IV. Clarification of Key Legal Concepts

1. Equitable Caregiver

An “equitable caregiver” is a non‑parent who has:

• Undertaken a permanent, committed parental role;
• Formed a bonded and dependent relationship with the child; and
• Can prove that the child will suffer physical or long‑term emotional harm if the court denies the petition and that continuing their relationship is in the child’s best interest.

The status is created by statute, not by the Constitution, and—even when adjudicated—does not automatically equate to constitutional parenthood.

2. Clear and Convincing Evidence

“Clear and convincing evidence” is an intermediate standard of proof:

• Higher than “preponderance of the evidence” (more likely than not), but
• Lower than “beyond a reasonable doubt” (criminal standard).

It requires evidence that makes the truth of the contention “highly probable.” This heightened standard reflects the gravity of interfering with fundamental parental rights.

3. Fit Parent

A “fit parent” is a legal parent who is not unfit under applicable standards (e.g., abuse, neglect, abandonment). A parent need not be perfect; the Constitution protects even imperfect but fundamentally adequate parenting, including cases where temporary custody has been lost to the State, until a high standard for termination is met.

4. Facial vs. As‑Applied Constitutional Challenges

• A facial challenge argues that a statute is invalid in all its applications, no matter how applied.
• An as‑applied challenge claims that a statute, though perhaps valid in general, is unconstitutional as used in the specific facts of a particular case.

In Venticinque, counsel conceded there was no facial challenge. Because the statute was not properly applied (wrong burden of proof), the as‑applied challenge is premature. The Court therefore leaves all constitutional questions open.

5. Constitutional Avoidance

“Constitutional avoidance” is a judicial doctrine under which courts:

• Decide cases on non‑constitutional grounds (e.g., statutory interpretation or procedural error) whenever reasonably possible; and
• Reserve constitutional rulings for when they are clearly necessary.

Here, the Court avoids pronouncing on the constitutionality of OCGA § 19‑7‑3.1 because the case can be resolved by correcting the misapplication of the statute’s burden of proof.

6. Waiver of Constitutional Rights

Waiver of fundamental rights (such as parental rights) generally must be:

• Knowing – the person understands the right and what they are giving up;
• Voluntary – not coerced; and
• Intelligent – made with awareness of likely consequences.

It is not enough that a statute exists; courts do not presume that a parent has waived fundamental rights simply because they took actions in the presence of a statute that might have certain legal consequences. Clear evidence of intentional relinquishment is required.

V. Conclusion

Venticinque v. Lair is a pivotal clarification in Georgia’s evolving law on third‑party parental claims. The Court’s core holding is straightforward but significant: under OCGA § 19‑7‑3.1, the putative equitable caregiver—not the legal parent—bears the burden of proving, by clear and convincing evidence, that the child will suffer physical or long‑term emotional harm if the petition is not granted. The parent has no statutory obligation to prove harm to the child in order to resist an equitable caregiver petition.

By vacating both the equitable caregiver adjudication and the custody order, the Court reaffirms a strong commitment to procedural rigor and to the primacy of parental rights. Through Chief Justice Peterson’s concurrence, the Court also sends a clear constitutional message:

• The State may intrude on a fit parent’s decisions about third‑party contact only where serious harm to the child is clearly shown and only to the limited extent necessary to avert that harm.
• Equitable caregiver status, while important and potentially protective for children, does not transform a non‑parent into a constitutional equal of the parent.
• Parents do not lightly or implicitly waive their fundamental rights merely by fostering close relationships between their children and others.

Going forward, equitable caregiver litigation in Georgia will be constrained by these principles. Courts must enforce the statute in a way that is consistent with long‑standing constitutional safeguards for parents, while still allowing for carefully tailored intervention where a child would otherwise face serious harm from the severance of a critical caregiving relationship.